On Wednesday, Oct. 26, the Pennsylvania State Senate passed Senate Bill 1, the taxpayer-funded private school vouchers bill, by a slim majority, 27-22. Its opponents have a litany of concerns with the bill and the harm it could cause to education in Pennsylvania. One of their most serious concerns is that the bill would almost certainly violate the Constitution of the Commonwealth of Pennsylvania. But unfortunately, Senators supporting the bill have decided to punt the issue to judges. They plan to enact SB 1 without considering whether it contradicts the Commonwealth’s constitution.

SB 1 would create a program through which the state would provide vouchers to students at Pennsylvania’s lowest performing schools. They could use these vouchers to pay to attend a private school. According to Senator Anthony Williams, one of the bill’s co-sponsors, and the Senate Republicans’ fiscal analysis, no more than about 10% of students at these schools would likely participate and receive vouchers. The money for the vouchers would come directly out of the budgets of the school districts that students were leaving.

The constitutional problems with the bill arise from the provisions about where vouchers can be spent. Families that receive vouchers can use them to pay to attend any private school—including a religious private school. SB 1 does not require that the voucher funds do not help pay for religious instruction.

Pennsylvania’s constitution could not be much clearer that the legislature is not allowed to pass a law like this one. A legal analysis by ten state and national organizations, including the American Civil Liberties Union of Pennsylvania, the Education Law Center, and the Pennsylvania State Education Association, concluded that SB 1 would violate no fewer than four separate provisions of the state constitution. For example, Article III, Section 15 commands, “No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian school”. Despite the constitutional command, SB 1 takes money used for public schools and uses it to pay for vouchers to attend sectarian schools. There is little room for doubt: SB 1, if it became law, would be unconstitutional.

So why are legislators spending their time trying to pass it? Senator Jim Ferlo of Pittsburgh asked that question at the Senate Education Committee’s meeting on October 24. Senator Williams’ responded that the legislature should pass the bill and let the courts decide whether it is constitutional or not. After all, the Supreme Court of Pennsylvania is the final authority for the meaning of the Pennsylvania Constitution.

But the senator left out a critical point: the Supreme Court is not the only authority responsible for protecting Pennsylvania’s constitution.

Every legislator, before taking office, swore, “I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth”. This oath is written into the Pennsylvania Constitution, and it is the same oath that judges take. It means that legislators have a duty to try not to pass laws that will violate the constitution and undermine the legal foundations of the Commonwealth.

Yes, the justices of the Supreme Court of Pennsylvania are the last line of defense for the state constitution. But the legislators are the first.